TO: Interested Persons
FROM: Tim Sparapani, Legislative Counsel
RE: Problems with Employment Eligibility Verification Legislative Proposals
I. Introduction: Legislative Proposals to Accomplish Employment Eligibility Verification Should Be Opposed
The American Civil Liberties Union (“ACLU”) recommends opposition to legislative proposals to establish a nationwide, electronic, employee work-eligibility verification system that requires any worker to obtain government pre-clearance to start a new job. Building such a system will cost the nation far more – in dollars, lost privacy and increased discrimination against lawful workers – than it will achieve in controlling undocumented immigrants. And this kind of system would, for the first time in American history, give the government the power to deny any willing worker, citizen or not, the ability to obtain a job. No willing worker should be forced to obtain the Department of Homeland Security’s permission to work, especially when that system will cause millions of work-eligible American citizens and lawful residents to be wrongly delayed or prevented from working and earning a living.
Proponents of such a system promise that this system will be easy and convenient, and will make the problem of undocumented immigrants simply disappear. Congress should not buy the hype. Building a government-run employment pre-clearance system will be complex, painful, and expensive, and will raise significant privacy issues at every step:
A. The I-9
Since 1986, Congress has attempted to shift the burden for controlling the flow of undocumented immigrants into this country to America’s employers by forcing them to “verify” the work-eligibility of all persons offered a job before they are hired. Currently, this comes in the shape of the familiar I-9 form. This is usually now a perfunctory task accomplished within the first few days of employment – for many, a meaningless process that rarely results in a delay in starting work. Since the imposition of the I-9 process in 1986, employers have lacked the ability to detect high-quality forged documents, which have become both ubiquitous and increasingly sophisticated as technology improves. In many American cities, document forgers operate openly, producing documents that allow unscrupulous employers to hire untold numbers of undocumented immigrants while claiming to have complied with the law. Numerous Congressional hearings and federal investigations by non-partisan bodies between 1986 and 1996 showed this system was an utter failure.
B. The Basic Pilot Employment Verification System
In 1996, Congress reacted by enacting three pilot programs that attempted to digitize the I-9 process by providing a few employers with some sort of electronic verification of job-seekers work-eligibility. Congress was to couple these pilots with stepped up “worksite enforcement” by the then Immigration and Naturalization Service (“INS”) that threatened to raid the worksites of employers who flouted the law. But, INS (now Immigrations and Customs Enforcement or ICE) gradually decreased worksite enforcement from over 17,000 raids in a single year down to just three raids in 2004.
Of the three pilots, the one remaining effort is the Basic Pilot Employment Verification System (“Basic Pilot”), which began operating with a few employers from 6 states who had previously violated the law. Those employers who were raided, found in violation of the law, and subsequently signed consent decrees with the government were forced to comply with the Basic Pilot going forward -- currently, only about 3,600 of the nation’s 8.4 million employers. The Basic Pilot requires employers to verify a would-be employee’s work-eligibility by contacting the Social Security Administration to verify the Social Security Number presented by an applicant, and the Department of Homeland Security to verify a would-be employee’s citizenship or visa status.
Yet, as made clear by the presence of approximately 11 million undocumented immigrants in the United States and an increasing flow of non-work eligible immigrants across America’s borders, the Basic Pilot also has failed to control the number of undocumented immigrants seeking work. There are at least four reasons for this failure:
1. The quality of forged documents improved dramatically. 2. The program was dogged by well-documented technology and data problems that undercut its usefulness and efficacy. For example, the database has been found to contain errors on fully 2% of citizens and as many as 50% of non-citizens who should be eligible to work.
3. The system remained vulnerable to job applicants who simply assumed false identities. See Eric Lipton, New Checks Planned for Employers and Their Workers, N.Y. Times, Dec. 2, 2005.
4. The dramatic drop in worksite enforcement led unscrupulous employers seeking low-wage workers to openly flout the Basic Pilot and the I-9 system.
Simply put, the Basic Pilot does not work, and the result is that America finds itself with no working employer verification system. Yet, despite this failure, several legislative proposals would mandate that every employer participate in the Basic Pilot,.
III. The Problems With Current Legislative Proposals
Some Members of Congress, recognizing the failure of previous enforcement efforts by the Department of Homeland Security’s (“DHS”) Immigration and Customs Enforcement (“ICE”) and its predecessors, now seek to shift the burden onto America’s employers for identifying undocumented immigrants and denying them work. Recently introduced legislation requires the government to build a system intended to verify the eligibility for work of all people hired. Employers would be forced to participate, at great expense, in a process that is, in effect, an attempt to digitize the I-9.
A. Lawful Workers Should Not be Denied the Right to Work by Government Databases
This legislation will – for the first time – give the United States government the power to deny willing Americans and lawful permanent residents the ability to obtain a job. This is an unprecedented change in policy and an unprecedented expansion in the government’s power and its relationship to the individual in our system. All willing citizens and lawful residents have a right to work in this country, yet if these proposals are enacted, each employee will be forced to prove his or her work eligibility. Such a system would reverse the appropriate burden – it is the government, not the employee, that should be forced to bear the burden of proving that a willing would-be worker is not eligible for employment because the documents presented are fraudulent. Expanding the Basic Pilot or similar work-eligibility system nationwide, however, would for the first time put innocent citizens and legal residents at the mercy of databases maintained by the Department of Homeland Security and the Social Security Administration, and forces the worker into the bureaucratic nightmare of having to affirmatively prove the adequacy of their documents, or disprove inaccurate data housed in government databases. Congress should resist this radical step.
B. Building a Nationwide Government Pre-Clearance System is Cost-Prohibitive
No one is sure how much these proposed systems will cost the country, but that cost would almost certainly be substantial. Worse, it would crowd out the funding for other more worthy homeland security programs.
The most recent estimate, a 2002 study cited by the United States Government Accountability Office in a report issued in August 2005, “estimated that a mandatory dial-up version of the pilot program for all employers would cost the federal government, employers, and employees about $11.7 billion total per year, with employers bearing most of the costs.” (emphasis added) Government Accountability Office, Immigration Enforcement: Weaknesses Hinder Employer Verification and Worksite Enforcement Efforts, at 23, August 2005, available at http://www.gao.gov/new.items/d05813.pdf ("the GAO Report").
Every one of the nation’s 8.4 million employers will need to be linked into the database. Currently, only about 3,600 participate in the basic pilot. Id. at 20-1. The government would need to provide adequate staffing to build and maintain the system, correct erroneous data, and handle the millions of verification requests that will be made each year. As the GAO recently concluded, in 2004, 15% of all queries processed by the Basic Pilot system required manual verification because of data problems. Id. at 29.
In short, building the proposed system will require extensive appropriations for technology, software, staff and security by the government. What is clear is that if Congress dedicates scarce Homeland Security resources to the creation of a national database system sufficient to accomplish employer verification, other, more important security priorities will suffer.
C. Technological Hurdles, Data Errors and ID Fraud Will Prevent Any Employee-Eligibility Verification System from Accomplishing Its Missions
It will prove difficult, if not impossible, for the government to build the database and the verification system some legislative proposals would require. As the GAO recently concluded, the Basic Pilot with its myriad technological flaws cannot simply be scaled up to perform verification nationwide, even if the roll-out of such a system is phased in over a period of time for classes of workers beginning with “guestworkers” or those holding visas, or by employer size based on number of employees. The current system architecture, which is strained by servicing 3,600 employers’ queries will crash if even a fraction of the nation’s approximately 8.4 million employers are required to participate. Id., at 20-1. The technological hurdles of building and maintaining the necessary network, software and management systems to verify the work eligibility of 65 million people each year are substantial. DHS will also require significant staff increases to identify, process, and correct the millions of errors that riddle its databases.
Furthermore, the Basic Pilot – or any similar system – will not be able to help employers or the government detect those committing identity theft by fraudulently presenting real documents belonging to another person who is eligible to work. Thus, the establishment of any employment verification system will not substantially decrease the use by undocumented immigrants of high-quality faked or stolen documents to evade detection. As the GAO reported,
[a]lthough an automated verification program like the Basic Pilot Program has potential to enhance the employment verification process and help employers detect use of counterfeit documents, the program cannot currently help employers detect identity fraud. In 2002 we reported that, although not specifically or comprehensively quantifiable, the prevalence of identity fraud seemed to be increasing, a development that may affect employers’ ability to reliably verify employment eligibility. If an unauthorized worker presents valid documentation that belongs to another person authorized to work, the Basic Pilot Program may find the worker to be work-authorized. Similarly, if an employee presents counterfeit documentation that contains valid information and appears authentic, the Basic Pilot Program may verify the employee as work authorized.
Report, at 22-3.
D. Employers Will Bear Heavy Cost Burdens but Not Receive any Comparable Benefits
Employers will be heavily burdened by the creation of this system, with no commensurate benefits.
E. Eligible Workers Will Be Denied the Ability to Work
Work-eligible workers will also suffer from the creation of any electronic employer verification system. Data errors and technological problems will invariably cause substantial problems. Workers will lose substantial wages as they are forced to wait for approval from the employment eligibility verification system. Where “tentative non-confirmation notices” are issued wrongly for citizens who are, in fact, eligible to work, willing workers will be delayed in earning a paycheck. Further, likely lengthy, delays will occur when citizens and lawful workers are forced to disprove that government data is inaccurate or confused.
In addition to the delays and costs resulting from errors, bigoted employers could use the existence of the system to discriminate against workers by claiming certain applicants’ documents contain inaccuracies or are fraudulent. More likely, where delays in verifying eligibility of workers who “appear foreign” occur once, the employer may hesitate to hire those individuals, fueling immigration-related employment discrimination.
F. An Employer Verification System Leads to a National ID System that Threatens Every United States’ Residents Privacy
Creation of the database necessary to implement the nationwide electronic employer verification system envisioned by some in Congress will substantially advance the establishment of a national ID card system, a result that is anathema to personal privacy and basic Fourth Amendment rights enjoyed by citizens. To verify information, the databases supporting driver’s licenses, Social Security cards, visas, and other citizenship documents will likely be linked together – and linked to other databases to detect problems in other databases. In short, the combined information in these linked databases will cause a national ID card system to arise.
Employers will be forced to demand these cards so it will become impossible to work in this country without carrying an identification card. This is a fundamental policy change, because it mandates ID as the cost of living and working in this country. It represents a fundamental reorientation of the relationship between the individual and government; instead of being free to work, with the burden on the government to intercede where illegality is suspected, it creates an America where employees must seek the affirmative permission of government to work through the construction of a complex of databases and identity papers. And once that national identity infrastructure is created, it will inevitably be expanded to many other purposes beyond preventing undocumented labor, including the routine monitoring and control of individuals travel and other activities.
To be capable of confirming work-eligibility these databases will contain substantial amounts of personally identifiable information regarding every citizen, every visa holder and any undocumented immigrants that previously encountered a government agency. The information needed will include name, age, Social Security Number and/or another unique identifier, citizenship status, period of work-eligibility for non-citizens, address (to stamp out ID fraud), and a list of the queries from employers, their locations and the dates of those inquiries. The resulting database will be a registry of every person in this country, and a full list of their employment history. Further, because many names are common, further information distinguishing individuals with the same names may be required, which likely necessitates the inclusion in the database of a date of birth and, perhaps, other biometric or personally identifiable information for every person residing in the United States. Thus, the database to support such a system will, for the first time, list every citizen and every visa holder residing in the United States, and, by necessity those who are non-eligible, but lawfully residing in this country. The establishment of such a system is anathema to rights to privacy under the Fourth Amendment to the United States Constitution.
Furthermore, none of the current legislative proposals contain adequate safeguards to protect personal privacy of peoples’ data in the database. Any system containing the significant amounts of personally identifiable information required to build the database needed to accomplish employment-eligibility verification and citizenship-verification will be a ripe target for identity thieves and/or those wishing to assume another eligible worker’s identity for the purpose of gaining employment. Those who are eligible but incapable of working, such as the seriously handicapped or mentally retarded, will be prime targets for the theft of their information by work-hungry undocumented immigrants. Further, given the volume of information transmitted between the country’s employers and those agencies, data breaches by the DHS and SSA are inevitable. Data breaches will inevitably occur, causing millions of Americans’ most sensitive information to be dumped into the public sphere.
Thus, a certain cost of building such a national ID system will be the personal privacy of America’s workers.
Any legislation enacted requiring the creation and implementation of a nationwide employee work-eligibility verification system will never achieve the stated goal of providing a workable, instantaneous system, but will force any willing worker to seek the government’s permission to work. In short, enacting an expanded employer verification system does not provide a solution to undocumenteds seeking employment. Instead, attempts to legislate such a system will cause significant hardships and collateral problems.
No employee should be prevented from working while the government resolves data errors or attempts to verify the willing worker’s eligibility. Technological hurdles and data inaccuracies will delay the establishment of such a system for years and lead to billions in wasted appropriations. If the bugs are eventually worked out, any employment verification system will threaten workers’ wages and their right to work. Further, it will decrease productivity nationwide as needy employers are denied workers when they need them most. Federal and state tax revenue will be diminished due to lost wages. The system itself is a threat to personal privacy. If implemented, the system will be a ripe target for identity thieves who would use the system to steal others’ identities to either commit fraud or to circumvent the barrier to work the system would be designed to erect. Finally, legislating the system necessitates the enactment of a national ID card system that is contrary to principles of both anonymity and privacy embodied in the Fourth Amendment to the United States Constitution.
In conclusion, any legislative proposal intended to enact such a system should be opposed so that some efficacious proposal could be advanced in its place in order to solve the problems raised by the presence of undocumented immigrants living in the United States and seeking work.
 A report by the Temple University Institute for Survey Research and Westat, cited by the Government Accountability Office “estimated that a mandatory dial-up version of the pilot program for all employers would cost the federal government, employers, and employees about $11.7 billion total per year, with employers bearing most of the costs.” United States Government Accountability Office, Immigration Enforcement: Weaknesses Hinder Employment Verification and Worksite Enforcement Efforts, August 2005, at 29, citing Temple University Institute for Survey Research and Westat, entitled, Findings of the Basic Pilot Program Evaluation (Washington, D.C.: June 2002).
 In 2003, President Bush expanded this program nationwide so that any employer could voluntarily participate in the Basic Pilot.
 Six of the seven
leading legislative proposals pending before Congress, including those
introduced by House Judiciary Committee Chair James Sensenbrenner (R-WI) and by
Senate Judiciary Committee Chair Arlen Specter (R-PA), would expand the fatally
flawed Basic Pilot. Only
legislation co-authored by Senators McCain (R-AZ) and Kennedy (D-MA), proposes
to build an entirely new database and system.